EFF has asked a federal court to reject efforts by Echostar to get the names and addresses of every customer that purchased a free-to-air satellite receiver. Echostar claims that the receiver can be modified to pirate DISH satellite TV programming. EFF argues that Echostar's demand, which seeks all purchasers regardless of whether they actually pirated DISH TV, would violate user privacy and leave innocent purchasers vulnerable to bogus legal threats.

Last October, Jammie Thomas was found liable for copyright infringement for file sharing, and hit with a $222,000 judgment. Thomas' case was the first file sharing lawsuit to reach a jury verdict.

On May 15, 2008, Judge Michael Davis requested briefing on whether Thomas should receive a new trial. The court said it was concerned that it might have made a mistake by instructing the jury that Thomas could be found liable if she simply made copyrighted songs available in a shared folder. There's good reason for this concern — as EFF noted at the time, and several courts have since affirmed, "making available" is not a cause of action under copyright law. EFF applauds the court's willingness to revisit this crucial question and weighed in as amicus in June of 2008.

EFF filed an amicus brief in Atlantic v. Howell, an Arizona lawsuit brought as part of the RIAA's national campaign against individuals for file-sharing. Although the case has received attention recently over the issue of whether CD ripping is legal, the main event in the case is about something different: can the RIAA sue people for attempted copyright infringement?

EFF's brief says no, as have several courts. The district court agreed on April 29, 2008, in an order denying the recording industry's motion for summary judgment on the "making available" distribution issue.

In Quanta v. LG Electronics, the Supreme Court has been asked to reaffirm the patent exhaustion doctrine, which entitles consumers to use, repair, or resell patented products that they have purchased. Despite clear Supreme Court precedents supporting the exhaustion doctrine, the Federal Circuit Court of Appeals has broken with this established principle, treating the doctrine as simply a "default rule" that patent owners can evade by attaching conditions to their products.

The issue is of increasing importance to consumers, who often face "single use only" and "not for resale" labels on patented products, interfering with legitimate activities and secondary markets. Lexmark, for example, has used "single use only" labels to limit the market for refilled toner cartridges. Similarly, "not for resale" labels could interfere with second-hand and refurbished product sales on eBay and Craigslist.

EFF filed an amicus brief on behalf of Consumers Union, EFF, and Public Knowldege, urging the Supreme Court to prohibit patent owners from using patent infringement suits to enforce these kinds of post-sale use restrictions on the products they sell.

On June 9, 2008, the Supreme Court issued a unanimous ruling reaffirming the patent exhaustion doctrine, ruling that LG's patents had been exhausted when patented chipsets were sold to Quanta. For additional analysis, read the Deep Link about the ruling.

Online CD Seller Fights Universal's Bogus Infringement Allegations Record Industry Claims Would Undermine Right of 'First Sale'

An eBay seller is taking on Universal Music Group (UMG) in court after the record industry giant targeted his online music sales with false claims of copyright infringement. EFF and the San Francisco law firm of Keker & Van Nest LLP are representing Troy Augusto, whose online auctions included sales of promotional CDs distributed by Universal. Copyright law's "first sale" doctrine makes it clear that the owner of a CD is entitled to resell it without the permission of the copyright holder. Nevertheless, Universal claims that CDs marked as "promotional use only" remain the property of Universal and thus can never be resold.

At issue in this case was whether three software programmers who created the BnetD game server -- which interoperates with Blizzard video games online -- were in violation of the Digital Millennium Copyright Act (DMCA) and Blizzard Games' end user license agreement (EULA).

BnetD was an open source program that let gamers play popular Blizzard titles like Warcraft with other gamers on servers that don't belong to Blizzard's Battle.net service. Blizzard argued that the programmers who wrote BnetD violated the DMCA's anti-circumvention provisions and that the programmers also violated several parts of Blizzard's EULA, including a section on reverse engineering.

The Electronic Frontier Foundation (EFF) and the firm of Day Casebeer Madrid & Batchelder served as counsel for defendants, arguing that programmers should be allowed to create free software designed to work with commercial products because it benefited consumers and helped promote innovation. The 8th Circuit Court of Appeals disagreed, holding that reverse engineering and emulating the Blizzard software were illegal.

Outcome: The reverse engineering and emulating of the Blizzard software violated the anticircumvention provisions of the DMCA. This ruling has been widely criticized as making it impossible to create new programs that interoperate with older ones and squeezing consumer choice out of the marketplace by essentially allowing companies to outlaw competitors' products that interact with their own.

EFF defended a target of a recording industry lawsuit, filing a brief in a New York district court urging the judge to allow the man to fight back with counterclaims of his own.

The Recording Industry Association of America (RIAA) has already moved to dismiss copyright infringement claims against Rolando Amurao. But Amurao alleges that the RIAA intended to harass him, and that their case is meritless. He has countersued for a declaration of non-infringement and a finding of RIAA copyright misuse. In its amicus brief, EFF argues that giving Amurao his day in court increases RIAA accountability in the industry's broad lawsuit campaign against file-sharing.

The RIAA has sued thousands of individuals for allegedly sharing music over the Internet since its campaign began in 2003. But sloppy investigative methods have left innocent people entangled in expensive and draining legal proceedings. When the RIAA threatens someone with a lawsuit, it offers to settle the case for a carefully chosen sum that is smaller than the legal fees required to fight the accusations. Faced with this choice, some innocent people settle simply because it's the most affordable option. However, a few individuals like Amurao have decided to battle the RIAA in court. In one Oklahoma case, EFF provided amicus support to an innocent target of a file-sharing lawsuit who is fighting to have the RIAA reimburse her attorneys' fees.

• Press Release: Recording Industry Target Deserves Day in Court April 10, 2007

The Motion Picture Association of America (MPAA) announced that the major Hollywood motion picture studios would be filing hundreds of lawsuits against individuals using peer-to-peer (P2P) file-sharing software to access movies online. In so doing, Hollywood follows in the footsteps of the music industry, which has filed more than 6,000 lawsuits against file sharers since September 2003.

On September 8, 2003, the recording industry sued 261 American music fans for sharing songs on peer-to-peer (P2P) file sharing networks, kicking off an unprecedented legal campaign against its own customers. The recording industry has now filed, settled, or threatened, legal actions against well over 20,000 individuals, and there is no end in sight. While the strategy of forcing ordinary music fans to pay thousands of dollars that they do not have to settle RIAA-member lawsuits is itself troubling, many innocent individuals are also being caught in the crossfire.

Along with defending P2P software developers and their right to innovate, EFF has been fighting for a better way forward that gets artists paid without fans getting sued, which you can find more about on our Let the Music Play campaign page. Below, we've provided a collection of resources that may be useful to music fans caught up in the RIAA lawsuit campaign and the lawyers who defend them. You can also learn more about how EFF has helped music fans stand up to the RIAA's overreaching claims in court. If you have been sued or need actual legal advice, consider contacting EFF or www.subpoenadefense.org -- we may be able to refer you to a lawyer or provide other assistance.

• RIAA v. the People: Four Years Later report August, 2007
• EFF editorial about the file sharing crackdown on college campuses June 6, 2007

General Resources and Memos Related to P2P User Lawsuits

• How to Not Get Sued for File Sharing
• RIAA v. the Students: An FAQ for "Pre-Lawsuit" Letters Sent to College Students (March 2007)
• How the RIAA Litigation Process Works [off-site]
• Directory of Lawyers Defending RIAA Lawsuits [off-site]
• Parental Liability for Copyright Infringement by Minor Children (November 1, 2005)
• Typical Claims and Counterclaims in Peer to Peer Litigation
• Memo Re Discharge of Copyright Judgments in Bankruptcy

Sample RIAA Documents

• Form of Doe Settlement Agreement - The document that Does targeted by the RIAA are being asked to sign.
• Sample Recording Industry Letter Threatening to file a lawsuit
• Sample Recording Industry Complaint Against an Individual

Prominent EFF Work

EFF Helps Innocent Defendants Fight Back

Debbie Foster, a single mom who was improperly sued by the RIAA back in 2004 for file sharing, not only got the lawsuit dismissed but also won back her attorneys' fees. The court's decision is one of the first in the country to award fees to a defendant in an RIAA case over music sharing on the Internet. EFF and several other groups filed an amicus brief supporting Ms Foster's motion.

Learn more: Capitol v. Foster

Related cases:

• Interscope v. Leadbetter
• Lava v. Amurao

EFF Fights to Dismiss Distribution Claim

The RIAA has been making the erroneous argument that P2P users violate copyright holders' distribution right. While P2P users might violate other rights, this claim would twist the Copyright Act if accepted by courts and create dangerous consequences far beyond file sharing. EFF has filed amicus briefs in several cases on this point.

Learn more: "Transmission + Reproduction != Distribution" February 27, 2006

Related cases:

• Capitol v. Thomas
• Atlantic v. Howell
• Elektra v. Dennis
• Fonovisa v. Alvarez
• Elektra v. Barker
• London-Sire v. Doe 1 (aka Arista v. Does 1-21)

EFF Fights to Protect Anonymity

The RIAA has been cutting constitutional corners in order to get subpoenas to force universities and ISPs to identify suspected file sharers. Not only is this unfair to the defendants, but it also threatens to create a dangerous precedent that copyright claims are somehow exempt from the First Amendment protections that apply to anonymous speech online. EFF has been filing briefs on this issue since the beginning the RIAA legal campaign.

Related Cases:

• Arista v. Does 1-100
• Virgin v. Does 1-44
• Motown v. Does 1-252
• Sony v. Does 1-40
• Arista v. Does 1-21

» Archive of cases directly against music fans

Directory of info on the legal disputes surrounding the Napster peer-to-peer (P2P) file-sharing service (principally used for trading MP3 music files).